If a person
trespasses upon another’s land and is injured, that injured person, generally
speaking, cannot assert a claim against the landowner unless the injury
occurred because the landowner acted in willful, wanton or reckless
fashion. Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio
St.3d 312. However, if that injured
trespasser is a child, the landowner will be held to a higher standard in Ohio,
as the Ohio Supreme Court has now adopted the Attractive Nuisance Doctrine set
forth in the Restatement of the Law, 2d. Torts.
While most states have followed the Attractive Nuisance Doctrine for
many years, Ohio did not, until Bennett
v. Stanley (2001), 92 Ohio St.3d 35.
In Bennett, a 5 year old drowned
after wandering into a neighbor’s back yard pool that had basically been
abandoned and was full of moss, algae and stagnate rain water. (Exacerbating this tragedy, the boy’s mother drowned
as well, trying to rescue the boy.) The Bennett court held that the landowner
could be liable for the death of the son (and the mother) under the Attractive
Nuisance Doctrine.
In order to
establish an Attractive Nuisance case, the practitioner must establish:
(1) the
injury occurred at a place known to be frequented by children;
(2) the
situs contains a condition reasonably known to be dangerous to children;
(3) the
child, because of youth, could not be expected to appreciate the risk;
(4) the
cost of rectifying the dangerous condition is slight as compared to the utility
of the existence of the dangerous condition; and
(5) the
landowner fails to exercise reasonable care in eliminating the danger.
We recently
used the Attractive Nuisance Doctrine successfully in Butler County to assert a
claim on behalf of a young boy, at the time age 10, who had been seriously
injured by playing on stacked lumber in a lumber yard that abutted the mobile
home park where the boy lived. The boy
sustained a serious injury to his lower leg when the unsecured lumber he was
climbing on gave way and landed upon him.
The case had all the elements of Attractive Nuisance. (1) Children frequently wandered from the
adjacent mobile home park into the lumber yard; (2) children loved to jump from
lumber stack to lumber stack; (3) the injured child had no appreciation for the
terrible danger lurking in the stacked lumbar weighing over one ton; (4) the
danger could have been rectified by fixing a few holes in the lumber yard
fence.
At Thomas J. Diehl & Co., LLC, we have been handling personal injury claims in Southwest Ohio since 1988. We regularly work with counsel in ethical fee sharing arrangements. Thomas J. Diehl is a Fellow of the Litigation Counsel of America and a member of the Million Dollar Advocates Forum.
To view more Co-Council Reports and more information on how Tomas J. Diehl - Ohio Personal Injurt Arrorney - can help you visit www.ThomasJDiehl.com